Jonathan Rubin cites progress in the ATM class action suit against Visa and Mastercard as Bruce Renard looks on.
NAC 2025: Update on long-time lawsuit
The National ATM Council Inc.’s 15-year lawsuit against Visa and Mastercard over ATM transaction charges will be finally coming to a close. That’s according to the attorney who has been fighting the case.
During the recent NAC 2025 expo and conference, attendees heard an update on the case, National ATM Council Inc., et al. v. Visa Inc., et al., No. 1:11-CV-01803-RJL, from Jonathan Rubin, the attorney who has been representing the plaintiffs in this lawsuit for 15 years.
“We figure that we are within the year of getting a date for trial and bringing the case to a close,” Rubin said regarding the suit, which has been before the U.S. Supreme Court twice, resulting in positive rulings for the industry.
Bruce Renard, NAC executive director, said the news about what he called a “landmark” case was one of the highlights of the NAC 2025 conference and expo.
“It was encouraging to hear the lead class counsel on the pending antitrust litigation, NAC versus Visa et al, and in hearing from counsel that we are in the final phase of that litigation and finally being able to look at actually being able to have our day in court and have the matter tried and resolved after almost 15 years prosecuting it,” Renard said in a post-show interview.
Overcharges called unfair
The case addresses what Rubin has called inequities in ATM access fee rules. The plaintiffs, a nationwide class of independent ATM owners and operators, believe the credit card companies’ rules prevent ATM operators from passing on savings to cardholders when their ATM transactions are handled by an ATM network other than Visa or Mastercard.
“There has been a big hit from these overcharges which has been our essential claim,” he said. “With God’s grace we will get to a conclusion to this case and a sum of money.”
Rubin said he believes the industry is now in the “home stretch” of the lawsuit. “We haven’t been able to say that before because of how civil litigation is processed in this country, which is less than swiftly.
Why the delay?
“Why is it taking so long?” Rubin asked, then proceeded to explain the reasons.
“Cases are triaged in our system,” he said. “There are cases that will be handled and decided first, cases involving people’s freedom, criminal law cases, cases involving situations where people are in trouble and they need a court order quickly or they need a court order fairly soon or there’s going to be some kind of irreparable change. But the lowest rung of the cases are cases like ours which have to do with money.”
“There’s good news and bad news on that,” he said. “The bad news is a money case is not considered irreparable harm. Why? Because the money can be paid back with interest.”
“The good news, or maybe a good way to look at it, we did a little bit of calculation on how much it’s costing Visa and Mastercard to delay this case, and we came up with something around $100 million a year.”
Historical background
Rubin then gave a historical overview of the case, which involved numerous twists and turns.
NAC filed the case in October 2011. In February 2013 the district court decided the case was improperly pleaded. NAC disputed that decision and filed a motion to amend this ruling, and in December 2013, the district court ruled the amendment would not make a difference and dismissed it.
In August 2015 the D.C. circuit court on appeal overturned that December 2013 decision.
In June 2016, the defendants appealed the D.C. circuit court’s reinstatement of the case to the U.S. Supreme Court and in November of that year the Supreme Court dismissed that appeal.
“The defendants decided to change their legal argument in the middle of the briefing, and the justices of the Supreme Court did not take kindly to that bait and switch,” Rubin said.
“In September 2019 we finally finished…that’s a (three-year) discovery period where we finally were sort of let loose to proceed in the litigation because the appeals had been sort of exhausted,” he said. “In September 2019 we were finally in a position to file our motion to certify a class.”
“At that point basically what we’re asking for is the court to tell us who is the main plaintiff in this case? Who is the legal entity that is going to bring suit against Visa and Mastercard because we are planning that it should be an aggregation of all similarly situated ATM operators bringing the case.”
The defendants in January 2022 then filed a second motion to the Supreme Court regarding the certification of the class. In July 2023, the D.C. district circuit affirmed the certification of class.
In January 2024, however, the defendants filed another petition asking the Supreme Court to review aspects of the class certification, which the court denied in April 2024.
Awaiting class publication
“Since then, we have been proceeding essentially as a class and we are now waiting and pending a motion for the publication of the class notice,” he said. The class notice will be an important document for how claims are to be made if there is a recovery in the case.
One track is where the plaintiffs will get their recovery, which is accomplished by bringing the defendants to trial.
The second track is what the plaintiffs do with the claim once it is paid with the fund that is created by the class action.
Details of the claims process will be decided by the court.
“All of that will be decided by the judge’s order, which is on his desk and we’re hoping to be signed soon,” he said. “The judge’s order will say, ‘This is the form that members or potential members of the class need to be notified. This is the identity of the administrator of the claim.’”
“We figure that we are within the year of getting a date for trial and bringing the case to a close,” he said.
“They (the judicial system) went through the steps,” Rubin said. “They did it in an appropriate way; we have been doing well on every turn and luckily the industry has been able to sort of survive it.”
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Class Actions Involving ATM Fees: Settlement Information and Deadlines
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